Apr. 23, 2013
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by Doug Stanglin, USA TODAY

by Doug Stanglin, USA TODAY

A judge has tossed out three of eight murder charges against a Philadelphia abortion provider involving babies allegedly killed after being born alive.

Dr. Kermit Gosnell, 72, whose abortion clinic has been called a "house of horrors," still faces the death penalty if convicted of first-degree murder in four remaining infant deaths. The judge also upheld murder charges in a patient's overdose death.

The ruling by Common Pleas Judge Jeffrey Minehart was apparently based on his view that prosecutors had not presented sufficient evidence in the opening phase of the Philadelphia trial that the three babies were viable, born alive and then killed.

In an exchange of impassioned arguments by both sides, Gosnell's attorney, Jack McMahon, had argued that all seven murder counts should be dismissed because none were born alive, having been injected with death-producing drugs during the abortion process, the Philadelphia Inquirer reported.

Assistant District Attorney Edward Cameron countered that there was adequate testimony from former employees on whether the seven were born alive and that the jury should be allowed to decide.

The rulings came in motions presented after the prosecution completed its case and before the defense began arguing its case Tuesday afternoon.

The defense questioned testimony from staffers who said they had seen babies move, cry or breathe. McMahon argued that each testified to seeing only a single movement or breath.

"There is not one piece - not one - of objective, scientific evidence that anyone was born alive," McMahon said. "These are not the movements of a live child."

Gosnell must defend a third-degree murder charge for the 2009 overdose death of 41-year-old Karnamaya Mongar, a recent refugee to the U.S. who died after an abortion.

McMahon argued that third-degree requires malice, or "conscious disregard" for her particular life.

"She wasn't treated any differently than any of the other thousands of other people who went through there," McMahon argued.

Assistant District Attorney Ed Cameron, in defending the murder charge against Mongar, said it stemmed from the totality of the circumstances.

They included the repeated medication dosages given by medical assistants; Gosnell's absence during most of her visit; and the hour it took to open a locked side door and take her by stretcher to an ambulance.